This is probably going to be a multi part question.
We have a band that we have 'characters" that perform on stage that are not actual band members, they are characters we made up that are in full costumes so their faces are never seen. we created fake names for the characters as well. one of the guys who was playing a character recently got mad and quit and started saying we have no rights to use any of the pictures of him in the costume. Now we hired a professional photographer for these shows who says he owns the copyright and we bought the usage of them......and that the character has no right whatsoever to anything
so question 1, does the character have any rights to the photos or any right to say we cant use them. you never see the actual person and it is a fake name?
question 2, regarding the photographer. if we hired him too come shoot the photos for us, does he still own the copyright, or do we since we hired him?
Copyright of live band photos
Hi Idsfa,
As you say, these are two separate issues.
I think the simple answer over the character pictures is that since the individual consented at the time, he can't withdraw that consent now unless there was some specific deal arranged beforehand (like a contract) which gave him the power to veto their use. The more complicated answer is that possibly what he was doing could be classed as a 'performance' and that would give him several rights over what could be done with copies of photographs or video recordings of that 'performance'. These exploitation rights include the sale, rental or lending of recordings of the performance, as well as the basic 'making available to the public' matter. However I don't think this would be a strong claim, since it seems clear that he consented to his 'performance' (if that's what it was) being recorded, presumably knowing that the intention was to use them in this way later. That would be implied consent. If the use of the photographs results in any direct income, he may be entitled to a fair share of the proceeds.
As far as the photographer is concerned, he is right that in the absence of any agreement to the contrary, he owns the copyright, even though you commissioned the shoot. Assuming there was no written agreement covering usage of the images, because you paid him to do the job, you have an implied licence to use the images for whatever purposes you originally intended. If he is a professional photographer, he should really have given you a written licence to use which stipulated any limitations (say the duration of the licence or the types of use you could make of the images). If he didn't do this, I think it would be fair to assume there are no limitations. Since he would be judged to be the more knowledgable person in any agreement like this I think a court would take the view that it was up to him to explain to you before the shoot, if there were any non-obvious limitations.
Should you ever commission a photographer in the future, make sure you sort out the licence terms beforehand and get them in writing. You don't need to buy the copyright (although this is an option) but it is worth trying to get an exclusive licence which means that even the photographer (as the copyright owner) has only limited rights to use the images. For example he might agree not to try and license their use to anyone else for a period of 5 years, so that you effectively have full control during that period. Then if your band becomes famous later, he can get some benefit by selling pictures from your 'early days' to magazines or newspapers etc. There are some standard agreement forms to cover this sort of deal, such as the one available here: Licence to Use
As you say, these are two separate issues.
I think the simple answer over the character pictures is that since the individual consented at the time, he can't withdraw that consent now unless there was some specific deal arranged beforehand (like a contract) which gave him the power to veto their use. The more complicated answer is that possibly what he was doing could be classed as a 'performance' and that would give him several rights over what could be done with copies of photographs or video recordings of that 'performance'. These exploitation rights include the sale, rental or lending of recordings of the performance, as well as the basic 'making available to the public' matter. However I don't think this would be a strong claim, since it seems clear that he consented to his 'performance' (if that's what it was) being recorded, presumably knowing that the intention was to use them in this way later. That would be implied consent. If the use of the photographs results in any direct income, he may be entitled to a fair share of the proceeds.
As far as the photographer is concerned, he is right that in the absence of any agreement to the contrary, he owns the copyright, even though you commissioned the shoot. Assuming there was no written agreement covering usage of the images, because you paid him to do the job, you have an implied licence to use the images for whatever purposes you originally intended. If he is a professional photographer, he should really have given you a written licence to use which stipulated any limitations (say the duration of the licence or the types of use you could make of the images). If he didn't do this, I think it would be fair to assume there are no limitations. Since he would be judged to be the more knowledgable person in any agreement like this I think a court would take the view that it was up to him to explain to you before the shoot, if there were any non-obvious limitations.
Should you ever commission a photographer in the future, make sure you sort out the licence terms beforehand and get them in writing. You don't need to buy the copyright (although this is an option) but it is worth trying to get an exclusive licence which means that even the photographer (as the copyright owner) has only limited rights to use the images. For example he might agree not to try and license their use to anyone else for a period of 5 years, so that you effectively have full control during that period. Then if your band becomes famous later, he can get some benefit by selling pictures from your 'early days' to magazines or newspapers etc. There are some standard agreement forms to cover this sort of deal, such as the one available here: Licence to Use
Advice or comment provided here is not and does not purport to be legal advice as defined by s.12 of Legal Services Act 2007